Imbert Imports, Inc. v. United States
| Decision Date | 05 April 1973 |
| Docket Number | Customs Appeal No. 5483. |
| Citation | 475 F.2d 1189 |
| Parties | IMBERT IMPORTS, INC., et al., Appellants, v. The UNITED STATES, Appellee. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Barnes, Richardson & Colburn, New York City, attys., of record, for appellants. David O. Elliott, New York City, of counsel.
Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Frederick L. Ikenson, New York City, for United States.
Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and CLARK, Justice (Ret.), sitting by designation.
This appeal is from a judgment of the United States Customs Court, Second Division, Appellate Term, 67 Cust.Ct. 569, 331 F.Supp. 1400, A.R.D. 294 (1971), affirming the judgment of a single Judge sitting in reappraisement, 65 Cust.Ct. 697, 314 F.Supp. 784, R.D. 11718 (1970).
Both courts upheld the imposition, under the Antidumping Act of 1921, as amended, of dumping duties on fourteen entries of portland gray cement exported from the Dominican Republic between October 1962 and the end of March 1963, and entered in the port of San Juan, Puerto Rico. Only the dumping duties are in issue.
The statute principally involved here, section 201 of the Antidumping Act of 1921, as amended (19 U.S.C. § 160) reads in pertinent part as follows:
The "record" before us is entirely documentary, consisting of certified copies of papers filed with the United States Tariff Commission during an investigation it conducted, and the Commission's "Determination of Likelihood of Injury," TC Publication 87, 28 Fed.Reg. 4047 (1963).
This record reveals that the Assistant Secretary of the Treasury advised the Tariff Commission on January 21, 1963, that portland cement, other than white nonstaining cement, from the Dominican Republic was being or was likely to be sold in the United States at less than fair value (LTFV). The Commission then issued a notice that it had instituted an investigation "to determine whether an industry in the United States is being or is likely to be injured, or is prevented from being established" by the importation of such merchandise into the United States. 28 Fed.Reg. 882 (1963). The Commission's Determination, supra, with Chairman Dorfman dissenting, followed on April 19, 1963.
The majority of the Commission found that imports of Dominican LTFV cement were entered largely at the port of New York and were marketed almost exclusively in the metropolitan area of New York City. This area was held to be a "competitive market area" and the domestic plants that historically supplied portland cement in the area were held to be "an industry" for purposes of the Antidumping Act. Its determination was that an industry in the United States was likely to be injured by reason of importation of LTFV Dominican cement.
The majority found that the Dominican producer had capacity to sell increased quantities of portland cement in the United States; that the Dominican market had provided an outlet sufficient to take only half the potential production of the country's cement plant and the plant has operated with considerable excess capacity even with substantial exports; that, through sales at prices that were below those charges in the home market but sufficiently high to cover out-of-pocket costs and contribute to net return, the producer could achieve more complete utilization of capacity and a lowering of unit costs; and that the very substantial market in the New York metropolitan area constituted a continuing and attractive lure for the producer's management seeking to expand production and reduce costs.1 It was also the view of the majority that domestic producers supplying the New York metropolitan area market had operated at about 70 percent of capacity; that not only did sales of imported cement at LTFV tend to repress prices in the marketing area but it was also difficult for domestic producers to compete therewith inasmuch as the price was based not on lower cost but on discrimination; that domestic producers were precluded from making complete use of their productive facilities as they would be able to do in the absence of such competition; and that, because of both legal and economic restraints, domestic producers would be unable to increase volume by resort to the same kind of price discrimination.
Appellants claim that the Tariff Commission's injury determination is invalid. They base that claim on the following contentions:
To continue reading
Request your trial
-
Pasco Terminals, Inc. v. United States
...is not one the court would have reached had the question first arisen in judicial proceedings. See, e. g., Imbert Imports, Inc. v. United States, 475 F.2d 1189, 60 CCPA 123, 127, C.A.D. 1094 (1973); City Lumber Co. v. United States, 311 F.Supp. 340, 64 Cust.Ct. 826, 832, 834, A.R.D. 269 (19......
-
Michelin Tire Corp. v. United States
...States, 81 Cust.Ct. C.R.D. 78-3 (1978). This reflects a line of decision going back, without clarification, through Imbert Imports, Inc. v. United States, 60 CCPA 123, C.A.D. 1094, 475 F.2d 1189 (1973) and City Lumber Co. v. United States, 59 CCPA 89, 457 F.2d 991, C.A.D. 1045 (1972) to Kle......
-
SCM Corp. v. United States
...brought by American importers to contest affirmative injury determinations by the ITC.7 See, e. g., Imbert Imports, Inc. v. United States, C.A.D. 1094, 475 F.2d 1189, 60 CCPA 123 (1973); City Lumber Co. v. United States, 457 F.2d 991, 59 CCPA 89, C.A.D. 1045 (1972); and Ellis K. Orlowitz Co......
-
Transcom, Inc. v. U.S.
...industries]." Imbert Imports, Inc. v. United States, 67 Cust. Ct. 569, 576 n.10, 331 F.Supp. 1400, 1406 n. 10 (1971), aff'd, 60 C.C.P.A. 123, 475 F.2d 1189 (1973). 13. Transcom contends that the PRC suppliers of its Hong Kong exporters were not notified. See Pl.'s Br. at 27-28. This Court i......